Legal thoughts, since 2005.

social media

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Another knee-jerk reaction to technology — this time in California

California legislators and court officials are taking a stand. It’s a murky, misguided one, lacking in common sense, but it’s a stand nonetheless. It’s a stand against progress, the Internet, and the looming threat of this newfangled thing called social media. And they’re going to win this fight, no matter what the cost to the jury and judicial system.

At least, that seems to be their end goal, but I could be wrong. It’s a bit hard to tell since they’re so caught up in preventing conduct that’s been around as long as the jury system (but now wears a 21st century mask) that it’s difficult to discern the rationale behind their muddled thought processes.

Let me back up. I’m getting a bit ahead of myself. Let’s start with the facts. There is California legislation pending that is supported by state court officials that will result in fines being imposed on jurors (up to $1,500) for using the Internet to research and communicate about pending cases. This legislation was drafted in response to the purported threat of increasing mistrials due to juror misconduct.

Now let’s face reality. Mistrials have always occurred due to juror misconduct. Jurors have always disregarded court instructions and researched cases using outside resources. This is nothing new.

In the past, jurors read newspapers or watched the evening news to obtain information about pending cases. Jurors also discussed the cases with their spouses or neighbors. Nowadays, jurors continue to use more traditional methods to learn about cases and parties, but also have the Internet available to them and conduct online research and share their experiences via social networks.

The only difference is that jurors’ impermissible online activities can now be documented and tracked. It’s a simple matter to access digital data evidencing a blatant disregard of a court’s instructions, but it’s another matter entirely to prove that a juror read a newspaper or spoke to another person about a pending case in violation of a judicial order to refrain from doing so. So, because the violative digital interactions are more easily preserved, more mistrials may be arising due to those particular actions.

But it’s important to acknowledge that it’s not the behavior that has changed, it’s the method. Jurors are violating court orders in more trackable ways. And now that judges can prove jurors are ignoring them, heads are gonna roll! Jurors heads. Ok not their heads. But their wallets will most certainly be impacted. And that’ll teach ‘em, right?

One thing it will undoubtedly teach them is that sitting on a jury is a risky—and potentially costly—business. Instead of encouraging citizens to participate in the democratic process of serving on a jury, this legislation will have the opposite effect. People will be more reluctant to serve on juries and our judicial system will suffer. Jurors will find ways to avoid jury duty (and potential fines) and the concept of “ a jury of your peers” will become an antiquated concept that is so 20th century.

If that’s the goal of the California legislature, then Bravo! They’re well on their way to stifling voluntary citizen participation in the jury process. But it that’s not the intention, then perhaps it would be wise to reconsider penalizing jurors for simply being human in the 21st century.

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Facebook, privacy settings and spoliation

Once again, social media and the law collide, this time in the Western District of New York. In March, United States Magistrate Judge Marian Payson handed down a decision in Thurmond v. Bowman, 2016 WL 1295957 addressing allegations that the plaintiff should be sanctioned for spoliation after revising the privacy settings to her Facebook account.

Two interesting issues were addressed in this case, which arose from claims that the defendants violated the Fair Housing Act and other statutes when they declined to rent an apartment to the plaintiff after learning that she had two children: 1) whether spoliation sanctions were warranted for the alleged inadvertent deletion by the Plaintiff of 3 Facebook posts and 2) whether sanctions were warranted due to the plaintiff’s revision of the privacy settings of her Facebook account after being warned by the court to preserve there status quo of her Facebook account.

First, the court considered the motion for spoliation sanctions. The defense alleged that the Facebook postings at issue were relevant to the Plaintiff’s claims of emotional distress. They asserted that they had accessed the Plaintiff’s publicly viewable Facebook posts and had printed out many of them. Then a few days later—after the court had admonished the Plaintiff to preserve the status quo of her Facebook account—many of the posts were no longer publicly available and it was later learned that three of the posts consisting of photos of the Plaintiff’s children had been deleted from her account. The motion seeking spoliation sanctions then followed.

The Court first addressed the relevance of the social media postings to the plaintiff’s claims of emotional distress and wisely noted that per se relevance did not apply: “(W)ithin the specific factual context of a given case, social media postings may be relevant to particular claims or defenses, including where social media posts may contradict claims of physical or emotional injury…That said, ‘[a] plaintiff's entire social networking account is not necessarily relevant simply because he or she is seeking emotional distress damages.’…As some courts have cautioned, “the relationship of routine expressions of mood [in a social media posting] to a claim for emotional distress damages is much more tenuous [than the relationship between a post ‘reflecting engagement in a physical activity” to a claim for physical injury damages].’”

The Court then concluded that the three missing posts, which the plaintiff contended that she inadvertently deleted, were not relevant to the claims of emotional distress and thus the defendants had suffered no harm: “With respect to the three deleted posts, defendants have failed to articulate any basis upon which to conclude that they are relevant to the issue of emotional distress. I likewise can think of none. (W)ith respect to the three Facebook posts that are missing from the printed posts produced to defendants…, I find that they are not relevant to this action; in any event, defendants possess two of the postings and part of the third, as well as many other photographs depicting Thurmond's children. Thus, the deletion of the three posts from Thurmond's account cannot be said to have harmed defendants in their defense of this action and sanctions for spoliation are not warranted.”

Finally, the Court addressed the issue of whether sanctions were warranted due to the plaintiff’s blatant disregard of the Court’s preservation order. The Court declined to issue sanctions but admonished the plaintiff for her actions: “By altering her Facebook account, Thurmond violated the Court's May 21 order. Her conduct had the effect of hiding her postings from public view, and hence from defendants' counsel's view. Of course, it does not appear that the postings were deleted, and they remain available for defendants' use, and defendants have not shown that they were prejudiced by Thurmond's conduct in violating the order. Nevertheless, it is troubling that the posts were removed from public view after this Court issued a consent order designed to preserve the status quo of her social media accounts…(and) Plaintiff is admonished that any instances of future similar conduct are likely to result in sanctions.”

So let this be a lesson to you: tread carefully when it comes to advising clients regarding preserving social media account information, especially when litigation is pending. And always ensure that the social media data—all of the digital data, not just the printed version—is preserved and available for disclosure. Otherwise spoliation sanctions will undoubtedly follow, to the detriment of your client’s case.

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Every year, as I work on the annual update to the book, Criminal Law In New York, which I co-author with Judge Karen Morris, I take notice when I come across cases where social media and criminal law intersect. People v. Lemons, 2016 WL 1735472, which was pointed out to me by my fellow Daily Record columnist Scott Malouf, is just such a case.

At issue in People v. Lemons is whether actions taken by the defendant using the social media platform Instagram constituted a communication that was in violation of a pending order of protection. In the accusatory instrument the complainant alleged that there was an order of protection in place that forbade the defendant from contacting her by electronic or other means and that the defendant violated it by sending her a “follow” request on Instagram.

The defendant brought a motion to dismiss the accusatory instrument for facial insufficiency, contending that the follow request he allegedly initiated via Instagram, which caused a notification to be sent to the complainant, via Instagram did not violate the order of protection because he did not directly communicate with her.

The Court rejected his argument, concluding that the request that he allegedly initiated through Instagram was, in fact, a communication: “(T)he Court has little trouble concluding that when the defendant sent the complainant a message through the Instagram app this was “communication or any other contact by ... other electronic or any other means,” and was forbidden by terms of the order of protection. The electronic communication originated with the defendant and ended up in the complainant's Instagram inbox, where she saw it.”

According to the Court, he effectively communicated with the complainant even thought it was not a direct communication. The Court explained that he initiated the connection request knowing it would set a series of events in motion which would result in a notification from Instagram to the complainant regarding his interest in connecting with her on the platform: “(E)ven though the specific allegation in the information is that the communication did not flow directly from the defendant to the complainant, since defendant asked Instagram, and not the complainant herself, for permission to view the complainant's page, and Instagram forwarded that request to her. There is no reason to conclude that this forwarding was anything other than an automatic and automated feature built directly into the app, and thus there is also no reason to conclude that the communication was made only to Instagram, and not to the complainant.”

As is often the case in well-reasoned decisions issued by judges regarding online interactions, Judge Statsinger compared the defendant’s actions in this case to similar “offline” behavior that was analogous to the actions alleged to have been taken by the defendant: “The situation described here is exactly the same as if the defendant, using his iPhone, had asked Siri to place a call to the complainant, instead of dialing her number himself. Just as in this hypothetical there could be no legitimate claim that the defendant communicated only with Siri and did not himself telephone the complainant, here there can be no legitimate claim that the defendant communicated only with Instagram, and not with the complainant.”

This was an interesting issue of first impression in New York and Judge Statsinger did a great job analyzing the issues and provided a clear, concise, and logical decision. One more social media platform has now been addressed in this context. Rest assured—many more will follow.

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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New Jersey Court On Ethical Implications Of Lawyers Mining Social Media

I’ve written many times in the past about how lawyers can ethically mine social media for evidence to support their clients’ cases. A number of ethics committees have already addressed this issue and most recently, the New Jersey Supreme Court considered whether the head of the state’s attorney disciplinary body could prosecute the lawyers for their agent’s alleged Facebook spying on their client’s adversary while litigation was pending, despite a local disciplinary commission concluding that the lawyers’ conduct was ethical.

In this case, John J. Robertelli v. The New Jersey Office of Attorney Ethics (A-62-14) (075584) (online: http://www.judiciary.state.nj.us/opinions/supreme/A6214JohnRobNJ.pdf), the plaintiffs in this case represented the defendants in a personal injury lawsuit. It was alleged that during the pendency of the personal injury claim, the defendants asked one of their paralegals to research the Internet, including social media sites, for evidence relevant to the case. The paralegal did so and initially discovered a Facebook profile belonging to the injured plaintiff that was publicly accessible.

However, at a later pointing time, the injured plaintiff revised his Facebook profile’s privacy settings, making it so that his posts could only be viewed by his Facebook “friends.” Once this occurred, according to the opinion, “plaintiffs directed the paralegal to access and continue to monitor the non-public pages, and she submitted a ‘friend request’ to (the injured plaintiff).”

In doing so, “the paralegal did not misrepresent her identity, but she also did not reveal that she worked for defendants’ law firm and was investigating (the injured plaintiff).” Her friend request was accepted and the injured plaintiff later learned of the paralegal’s actions. As a result, among other things, his counsel filed an ethics grievance alleging that her actions were improper since she contacted their client without first reaching out to them. The Secretary of the District II Ethics Committee then reviewed this claim and concluded that even the allegations were true, they did not amount to unethical conduct.

The issue was appealed and eventually made its way to the New Jersey Supreme Court, which was tasked with deciding the very limited issue of whether “the Office of Attorney Ethics (OAE) may investigate a grievance against an attorney alleging misconduct violating the Rules of Professional Conduct (RPCs) after the Secretary of a District Ethics Committee (DEC) has declined to docket the matter.”

The Court concluded that the ethics probe could go forward, explaining that “No reported case law in our State addresses the sort of conduct alleged.” This conclusion was based, in part, on the fact that the defendants’ attorneys alleged in their complaint that because they lacked familiarity with how Facebook worked, they did not intentionally act unethically. As explained in the Court’s decision, they claimed “that they acted in good faith at all times and had not committed any unethical conduct. They explained, in part, that they were unfamiliar with the different privacy settings on Facebook.”

This defense does not bode well for the defendants’ attorneys. That they failed to learn about the ins and outs of Facebook prior to directing their agent to mine it for evidence is an unconvincing argument. If you’re going to use a particular type of technology in your practice, you’d be wise to ensure that you understand how it works. In fact, recent amendments to the comments to the ABA’s Model Rule 1.1, which have in turn been adopted by many states, suggest that lawyers have an obligation to stay abreast of changes in technology. The failure to do so may very well amount to an ethical violation at best and malpractice at worst.

This case is yet another example of what I often tell lawyers: when mining social media for evidence, err on the side of caution. If you’re not sure whether it’s ethically permissible to engage in a certain action, then don’t do it. Better safe than sorry.

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Lawyers and Social Media in 2016

Social media has been part of our daily lives for nearly a decade. At first, many lawyers were skeptical, believing that social media offered little value to their practices. But over the years, as social media has enmeshed itself into our culture, the effects of it upon our day-to-day lives is indisputable. Social media impacts both our personal and professional lives, a fact that many lawyers are finally accepting.

That’s why lawyers are increasingly acknowledging the importance of understanding--and using--social media. For some lawyers, especially litigators, it's because social media is a tool that helps them provide better representation to their clients. Whether it's mining social media for evidence or researching jurors online, social media is helping them to make their clients' cases in court.

Some lawyers are using social media for business development while others are interacting online for networking purposes. In fact, according to the results of the most recent ABA Legal Technology Survey Report, more lawyers than ever are using online tools and social networks to forward their professional goals. The results from the 2015 report show that lawyers are participating on social media more than ever before, with solo and small firm attorneys often leading the way, although large firm lawyers occasionally lead the pack.

For example, according to the report, 85% of law firms have a website and 76% of law firms now maintain an online presence compared to only 55% in 2012. Lawyers report that they interact online for a variety of reasons, with career development and networking leading the way (71%), followed by client development (48%), education and current awareness (45%), and case investigation (24%).

Lawyers with the following practice areas are most likely to have personal social media profiles for work-related purposes: commercial and corporate (80% each), contracts (79%), and litigation and employment/labor (77% each).

When it comes to the specific social media sites, LinkedIn is the most popular with 57% of law firms and 73% of lawyers reporting a presence on Linkedin. Next is Facebook, where 35% of firms have a Facebook page and 27% of lawyers maintain a personal profile on Facebook. Twitter comes in third, with 21% of firms using Twitter and 23% of lawyers using it for professional purposes. And Google Plus comes in last, with 10% of firms and 9% of lawyers reporting a Google Plus presence.

But are their efforts paying off? 24% of lawyers report that they've been retained by a client because of their social media efforts, so all signs point to yes.

Lawyers are blogging as well with 26% of law firms maintaining a legal blog, up from 22% in 2012. 7% of individual lawyers also maintained a blog for professional purposes in 2015 compared to 9% in 2012. Managing partners were most likely to maintain a legal blog for professional purposes (11%), followed by solo practitioners (9%), and associates (7%). Partners were the least likely to report they maintain a legal blog for professional purposes (4%).

According to the report, lawyers spend 1.9 hours per week updating/maintaining their personal legal blog and 39% have been retained by a client because of their blogging.

So, the results of the survey indicate that, without a doubt, lawyers are recognizing the benefits of interacting online and are increasingly using social media and other online tools to create connections and market their practices. And, even more importantly, their efforts are paying off.

It’s a far cry from when I first began encouraging lawyers to blog in 2007. Back then, I was often met with blank stares. My how times have changed! It’s a whole new online world out there and lawyers are finally taking advantage of the many business development and networking opportunities the Internet has to offer.

In a recent Order issued in Oracle v. Google, No. C 10-03561 WHA, United States District Court Judge for the Northern District of California, William Alsup, had a lot to say about lawyers using social media to research jurors—and none of it was very positive. His viewpoint on this practice was made all too clear in the first sentence of his Order:

“Trial judges have such respect for juries — reverential respect would not be too strongto say — that it must pain them to contemplate that, in addition to the sacrifice jurors make for our country, they must suffer trial lawyers and jury consultants scouring over their Facebook and other profiles to dissect their politics, religion, relationships, preferences, friends, photographs, and other personal information.”

Although I’ve often asserted that online activities are simply an extension of those occurring offline, Judge Alsup begs to differ. In his mind, researching jurors using 21st century methods diverges from more traditional methods in a way that is downright invasive. This, despite the fact that said jurors have voluntarily created their online profiles and made them publicly available.

According to Judge Alsup, this only occurs because most social media users are an uninformed, naive bunch: “It is a weak answer that venire persons, through their social media privacy settings, have chosen to expose their profiles to scrutiny, for navigating privacy settings and fully understanding default settings is more a matter of blind faith than conscious choice. (Otherwise, there would be no need for websites explaining the intricacies of privacy settings.)”

In other words, Judge Alsup is contending that for some reason, information publicly available online somehow differs from information that is publicly available offline. Granted, it’s a simpler matter to obtain information online, but lawyers have always researched publicly available information about jurors using more traditional methods. That the methodology is different should be of no moment. As you’ll see, Judge Alsup’s outlined concerns regarding the proposed online jury research only underscore this idea, since his concerns apply equally to information obtained both online and offline.

One concern he raises is “the apparent unfairness in allowing the lawyers to do tothe venire what the venire cannot do to the lawyers will likely have a corrosive effect on fidelityto the no-research admonition.” But it has always been the case that lawyers can research jurors but jurors cannot research the lawyers or the case. That the information sought to be gleaned about the jurors in this case will be obtained from online resources is irrelevant to this concern (or should be).

In the Order, Judge Alsup also expresses the concern that “by allowing counsel to conduct research about the venire and the jury is that it will facilitate improper personal appeals to particular jurors via jury arguments and witness examinations patterned after preferences of jurors found through such Internet searches.” Again, this same information has always been available from offline resources, such as, for example, “letters to the editor” or other published writings penned by jurors.

Another perceived problem was that said online research was a threat to the “privacy of the venire…Their privacy should yield only as necessary to reveal bias or a reluctance to follow the Court’s instructions.” As for this concern, the online research that the attorneys would conduct arguably forwarded one of the court’s stated goals: to reveal bias or a failure to follow court orders. And in the case of online conduct by jurors that violated court orders during the pendency of the case, the effects could be far reaching do to the nature of online communications and thus the incentive to prevent such conduct would arguably override the concern for the jurors’ need to protect their online information (that they’ve allowed to be made publicly available).

In other words, this Order strikes me as a classic case of a knee jerk reaction to technology. In the end, Judge Alsup begrudgingly permitted the attorneys to conduct online research of potential jurors, as long as they were informed that it would be occurring. But he did so only after engaging in the judicial equivalent of waving a stick and yelling “get off my lawn, you young whipper snappers!” that being said, it’s progress, nonetheless, and I suppose that reluctant progress is better than none at all.

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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NY judge weighs in on whether ‘tagging’ violates order of protection

Social media permeates every aspect of our lives so it’s not surprising that online interactions can sometimes trigger criminal prosecutions. That’s why, in the past I’ve discussed how social media and other online communications can constitute aggravated harassment or violate pending orders of protection.

That’s exactly what occurred in People v. Gonzalez, Case No. 15-6081M. This decision was handed down by Westchester County Supreme Court Justice Susan Capeci in January of this year and addressed the issue of whether certain Facebook activities violated an order of protection.

At issue was whether the defendant committed criminal contempt in the second degree when she “tagged” the protected party in posts made to Facebook. In this case, an order of protection was in place in favor of the complainant and required that the defendant ”refrain from communication or any other contact, directly or indirectly through third parties, by mail, telephone, e-mail, voice mail or other electronic or any other means ...."

It was alleged that the order of protection was violated when the complainant received notifications from Facebook that the defendant:

did "tag" [the protected party] in two Facebook posts the "first stating"Stupid." The second post the defendant tagged [the protected party] in stated: "Youand your family are sad:(sonia and especially maribel!! You guys have to come strongerthan that!! I'm way over you guys but I guess not in ya agenda.

The defendant did not deny the conduct but instead contended that the conduct alleged—that she “tagged” the complainant in two Facebook posts—was not specifically prohibited by the order of protection.

The Court disagreed, noting that the order of protection clearly specified the type of conduct that was prohibited—communication via electronic means—and that the defendant’s conduct was targeted toward the complainant:

The Court finds the above communication alleged to have been made by thedefendant via Facebook to be sufficient to establish, if true, every element of theoffense charged and the defendant's commission thereof. The Order of Protectionprohibited the defendant from contacting the protected party by electronic or any othermeans. The allegations that she contacted the victim by tagging her in a Facebook'posting which the victim was notified of, is thus sufficient for pleading purposes toestablish a violation of the Order of Protection.

While I agree with the Court’s conclusions, I was somewhat surprised that there was no further discussion as to what constitutes a “communication” and whether tagging someone in a Facebook post falls under that definition. Because, as I’ve oft repeated, the online is an extension of the offline, it would have been helpful to examine the nature of the defendant’s conduct in order to ascertain how and why it constituted a “communication.” Similarly it would have been illustrative to provide examples of offline conduct that were somewhat comparable to the defendant’s alleged behavior.Assuming that the defendant was aware that when she “tagged” the complainant in a post, the complainant would likely receive a notification (depending on her Facebook settings), then clearly the defendant understood that she was in essence sending a message to the complainant. This was especially so given that she not only “tagged” her but also included messages in the post directed specifically to the complainant. However, even if she had not included messages of that nature, it’s conceivable that simply “tagging” someone in a post might constitute prohibited communication.

Unfortunately, the court did not address this issue and instead simply concluded that the alleged conduct violated the order of protection. While the decision was arguably correct, it was devoid of useful guidance for other courts who will undoubtedly wrangle with similar issues in the future.

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Defining "Social Media" For Probationers

It seems lawyers can’t escape social media, no matter how hard we try. As I’ve written about previously, social media is now being used as evidence in cases, lawyers are using it to research jurors, and people are being charged with crimes relating to their actions taken using social media. And once those individuals are convicted, many of them are placed on probation and their use of social media is often limited by the terms of their probation.

That’s exactly what happened to Hector Salvador Lopez, a young man in California who was sentenced to a three-year “blended sentence,” which included probation, after pleading nocontest to a count of vehicle theft. One of the conditions of his probation was that he provide his probation officer with the passwords to any “social media sites” that he participated on.

Mr. Lopez challenged that condition in People v. Lopez, 2016 WL 297942 (Cal. App. Ct. Jan. 25, 2016) (online: http://www.courts.ca.gov/opinions/nonpub/H041713.PDF), claiming that it was unreasonable and unconstitutionally vague. He asserted that the term “social media site” was unclear because it could apply to any number of websites, including sites with a social element but which are not commonly referred to as social media sites.

The Court explained his position as follows: “In support of this argument, defendant brings up the example of a newspaper Web site where individuals are able to create accounts and comment on news stories. These Web sites involve a degree of social interaction with other users, and is away for users to share and promote content with each other. Defendant insists that it is unclear whether these Web sites would be considered social media sites under the imposed condition.”

The Court rejected his argument, explaining that there were commonly accepted definitions of social media and cited definitions found in the Oxford Dictionary. The court then explained that based on those definitions: “(T)he term ‘social media,’ although not mathematically precise, has a reasonably certain definition: Web sites where users are able to share and generatecontent, and find and connect with other users of common interests. And, the term wasmade sufficiently specific by the trial court when it clarified that the probation conditioncovered social media sites including Facebook, Instagram, Myspace, Mocospace, oranything similar. Accordingly, for the aforementioned reasons, we do not find that theterm “social media sites” to be unconstitutionally vague and reject defendant’s conjecturethat the condition could be interpreted to include news Web sites.”

Next, the court addressed Mr. Lopez’s assertion that the term “sites” was vague, since it was unclear whether only sites accessible via mobile devices were included. The Court again rejected his assertion and offered the following explanation: “Defendant claims that it is unclear whether, based on this language, social media applications (i.e., applications that only have an interface accessible on a cell phone or tablet device) that do not have a Web site component would be covered by the probation condition. We disagree that the condition is vague in this regard. Although the term references ‘sites,’ we believe it is reasonably clear that the probation condition intends to include all social media that has an online component. Read this way, there is no vagueness in the condition’s use of the term ‘sites.’”

Of all of the Court’s conclusions, I found this one to be the most puzzling. The Court relies on the assumption that the term “online” is a concept that has an accepted definition and is commonly understood. When I first read the Court’s statement, it confused me since I’ve always thought of “online” activities as those conducted via websites. After thinking about it more, it’s possible “online” could simply mean that you access the site via an Internet connection—something you do using any Internet-enabled device, whether it’s a computer or a mobile device. But for the Court’s conclusions to be sound, it would have made sense to tie up that loose end and delve into that issue more thoroughly.

Of course, that gap in the Court’s analysis is a perfect example of the difficulties courts encounter when attempting to specify, limit, and define ever-changing concepts such as “social media” and “sites.” Because these concepts are constantly evolving, courts would be wise to draft broad, elastic definitions in their decisions that will withstand the test of time, lest their conclusions be rendered outdated as soon as the ink dries.

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Prosecutors, social media evidence, and ethics

On many occasions I’ve written about the importance of understanding your ethical obligations when mining social media for evidence. This duty is particularly important when it comes to prosecutors. After all, their actions can affect the constitutional rights of those accused of crimes and the interests of those against whom crimes have alleged to have been committed.

This is an issue that is becoming increasingly relevant now that social media is commonplace. When social media first emerged on the scene, lawyers weren’t sure what to make of it. But astute litigators were among the first to comprehend the potential impact of evidence gleaned from social media upon the litigation process. And, because prosecutors spend their days in the courtroom, some of the first instances of allegations of impropriety relating to the mining of social media for evidence involved their actions..

I wrote about one such incident back in June 2013. In that case, former Cuyahoga County, Ohio, Prosecutor Aaron Brockler had admitted to assuming the alias of a woman on Facebook and then contacting alibi witnesses of an accused killer whom he was prosecuting. He pretended to be a fictitious former girlfriend of the accused and then engaged the witnesses in a Facebook chat, during which he encouraged the witnesses to change their testimony. When his actions were discovered, he was terminated on the grounds that his actions were unethical.

At the time, Brockler maintained that his deceptive actions were perfectly acceptable. He was seemingly oblivious to his ethical obligations and remained resolute in the assertion that his actions were not problematic, telling the Sun News: “Law enforcement, including prosecutors, have long engaged in the practice of using a ruse to obtain the truth … I think the public is better off for what I did.”

Unfortunately for Brockler, in January of this year, the Board of Professional Conduct of the Supreme Court of Ohio begged to differ. (See: Slip Opinion No. 2016-Ohio-657).

After reviewing Brockler’s actions, the Board concluded that his actions were clearly unethical: “We…find that Brockler’s use of a deceptive investigative technique to contact Dunn’s alibiwitnesses violated Prof.Cond.R. 8.4(c) and (d)…We also find that a one-year suspension, fully stayed on the conditions recommended by the board, is the appropriate sanction for Brockler’smisconduct.”

The dissenting judge went even further, and I tend to agree with his conclusion that a stayed suspension was an inadequate penalty given Brockler’s actions and his failure to uphold the duties he owed to the public as a prosecutor: “Brockler actively hindered the pursuit of justice in a criminal proceeding on multiple occasions, by lying to alibi witnesses in an effort to make them change their statements. He made every effort to hide his deceptive activities until they were uncovered, and then he refused to admit that his actions were wrong…Failing to require Brockler to serve even a single day of his suspension does little to establish that this court will ensure the integrity of prosecutors and the ethical administration of justice.”

Whether you agree with the penalty or not, the lesson to be learned is clear: attorneys, whether prosecutors or otherwise, should tread lightly when mining social media for evidence. If you intend to seek data found online for use in litigation, it’s important to understand both your ethical obligations and the ins and outs of the social media platforms that you intend to mine for evidence. Otherwise, you might find yourself in the same boat as Brickier—and that’s not a place you want to be.

This week's Daily Record column is entitled "Guidelines Issued On Jurors And Social Media For New York Courts." My past Daily Record articles can be accessed here.

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Guidelines Issued On Jurors And Social Media For New York Courts

Last year the Social Media Committee of the New York State Bar Association’s Commercial and Federal Litigation Section issued Guidelines that addressed the ethics of lawyers using social media. You may recall that I wasn’t sold on the necessity of such a lengthy report addressing what I believe is a relatively simple concept: online conduct is simply an extension of offline conduct. For that reason, the guidelines were unnecessary since offline analogies can usually be found for online conduct.

In comparison, just last month the Committee released a new report which offers guidelines for courts on the issue of jurors and social media. This report provides much-needed analysis of issues that are affecting the judicial process on a daily basis. Jurors are often impermissibly using social media in ways that have long-lasting, costly effects on our justice system and judges are struggling to keep up with the changes wrought by jurors’ ability to use online platforms to obtain information about cases and share their experiences with the world.

Enter the Social Media Jury Instructions Report.This well researched report offers recommendations for judges to help address jurors’ use of social media and adeptly balances jurors’ use of social media with the interests of the judiciary and litigants.

At the outset, the Committee began by acknowledging the profound impact of social media on our culture: “Social media has revolutionized how we communicate. It routinely serves as both ameans of communication and a source of information for jurors and counsel. Its use must beanticipated and its impact addressed during jury selection, at trial, prior to and during jurydeliberations, and after trial.”

According to the Committee, at the start of each case, it’s important to ensure that jurors understand that many of their online communications are public and an be viewed by anyone with Internet access: “(C)ourts should consider an instruction that jurors be ‘advised that what you may view as a private social media communication made by you or someone you know may or may not be private and can be viewed or followed by the public, including the lawyers in this case.’”

Next, the Committee explained that judges should provide clear and illustrative instructions to jurors regarding the types of online activities and communications that are permissible: “To adequately communicate the scope of what a prospective juror may or may not do andwhat is expected of them, it is necessary to instruct jurors using examples from the technologyjurors are likely to use. For example, it may be difficult for some jurors to understand that ageneral instruction not to use the Internet or social media is also a specific instruction not to usecommon services and websites such as Google, Bing, Twitter, Facebook, YouTube, Snapchat,Wikipedia, Google Maps or MapQuest to perform ‘research’ on a case…(J)ury instructions need to include detailed and specific explanations of the reasons certain activities are prohibited, examples of violations drawn from existing case law, and the range of the activity prohibited.”

The Committee also provided detailed guidelines for judges, with the end goal of reducing the potential impact of improper social media communications on jury trials. It summarized recommendations as follows: “(C)ourts…should: (1) consult with counsel prior to jury selection concerning the potential review and/or monitoring of “public” juror social media communications during jury selection, trial and/or deliberations; (2) consider the Section’s revised model New York’s Pattern Jury Instructions; and (3) consider displaying in the jury deliberation room a social media usage poster warning of the consequences of improper social media communications.”

All in all these guidelines are very useful for both litigators and judges and offer great insight into the impact of social media on litigation, including ways to avoid, or at least mitigate, the costly effects of the improper use of social media and online tools by jurors. It’s a very thorough, valuable report and is well worth a read.

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